A Bit About Law in Canada

Prior to posting anything about family law, I wanted to start this blog by giving my readers a brief overview of the legal system in Canada. As many of you will know the legal system in Canada was inherited from the British system that was in place from the 1750s - 1860s. In fact, must of the developments in the legal system in Britain from 1867 - 1931 have also been adopted in Canada.

What does that mean though?

Well it means two things: first, and probably of most important to those reading this, it means that we have a certain type of legal system in Canada; second, it means that our laws, systems, and traditions, can seem quite odd to people who are not familiar with them. I will explain a bit about each of these two things below.

Our Type of System

There are a lot of different types of systems of law throughout the world. Canada uses a system called the common law (as does almost everywhere that used to be a British colony). Common law has a very long, and rich history that stated in England in 1066 during the Norman Conquest when William the Conqueror invaded England. During this time most people could not read, and information travelled very slowly. As a result, there was little use in having libraries full of laws which very few people could understand and access. Therefore, the idea of the "common law" was adopted. The community would come together to resolve a legal dispute, and a judge would make a decision that was consistent with previous decisions which were made on the same topic. People did not need to be able to read - they only needed to be able to listen and speak - to access the law.

Today, often times this type of law is called "judge made law", and while this may be an over simplification, it is also not incorrect. This system of law operates based on a few different principles, two of which will will look at here.

One of these principles of that of stare decisis (Latin for "let the decision stand"). This concept is related to the idea of precedent. The idea behind this is that once a judge applies law to a given set of facts, and comes to an understanding of how the law applies to these facts, that is how the law will apply in every case with these exact same facts. While judges and lawyers try to apply this principle, it is often more difficult to do so than one might think. Take the following example: we all know that there is a prohibition in the criminal code against stealing. We are all taught that stealing is wrong from a young age. There are thousands and thousands of cases where courts have found someone guilty of stealing, and then sentenced them to jail.

However, if someone steals a sandwich from Safeway to feed their hungry child, should they receive the same penalty as someone who steals a diamond ring from a jewelry store? Should they receive the same penalty as someone who steals food from a Safeway when their intention is to toss the food at someone they don't like? Should they receive the same penalty as someone who steals the a sandwich from Safeway in order to feed themselves? What if their child is hungry, but there is a food bank near by?

In each of these situations, a theft may occur. And, as we mentioned above, we all know that stealing is wrong. However, someone who steals food to feed a hungry child and someone who steals from a jewelry story are doing two very different things. It is the job of lawyers to argue either why their client should be treated the same (or different) as someone in a similar situation to the one their client is facing. This is what the principle of stare decisis or precedent is all about. If two different people, do something and every single fact about each is identical, then the law should treat the second person the same as the first.

The second principle that is important to understand when thinking about the common law is that the "judge made" component of the common law stands on equal ground to the statue made law that is made by a legislature or by Parliament. Parliament may pass an act that states "people who do X, must then do Y". However, how the statue (or the "Act") applies to people in each situation can vary. As a result, when there is ambiguity, it is up to the courts to determine how the statue should apply to a specific situation. The courts are not above the legislature in what they can do - nor are they beneath the legislature. The courts are on equal footing with statue - they simply clarify what the statue says.

Today, somewhere between 25% and 35% of the world's population live in jurisdictions which utilize the common law system.

Other legal regimes also exist, the other most common being the civil law system. In a civil law system, there is much more emphasis on establishing a complete code, which anticipates every eventual outcome in any situation. While judges still are used to apply the codified system of law, the importance of the judiciary is greatly diminished in these jurisdictions. Additionally the principle of precedent does not really exist in civil law systems. In Canada, Quebec still uses the civil law system. In the United States, the state of Louisiana operates under the "Napoleonic Code" (a type of civil law that was inherited from France during the era of Napoleon).

There are also many other legal systems in the world: socialist law (which is a unique type of civil law which exists in China and North Korea), religious law (which forms part of many religions such as the Code of Canon Law in the Roman Catholic Church, Sharia Law in the Islamic faith, or Halakha in Judaism), customary law (where customary practices are observed as law, such as in India), and mixed legal systems (which may adopt elements of civil and common law systems, such as in the Philippians and Botswana).

For the purposes of this blog though, we will mostly concern ourselves with the common law.

Oddities About the Common Law System

The common law system has proven itself to be one of the most adaptable and flexible legal regimes human beings have every developed. As a result, it has been around for about a thousand years. However, one of the results of using a legal system that has been around for so long is that it can, at times, produce results or necessities that do not seem to make sense to an outside observer. Indeed, at times the common law may seem absolutely illogical to people who are unfamiliar with how the law works. However, if one digs down a bit beneath the surface, the common law is actually a remarkably logical thing - it is only because our understanding of history is generally so short that the system does not seem to make sense.

One example of how the common law may seem odd to us in 2018 involves Batman.

Did you buy Batman comic books growing up? Or Superman? Or Wolverine? Or Catwoman? Well, when you purchased them you were helping a criminal! Section 163(1)(b) of the Criminal Code states that "every one commits an offence who makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic."

Why should selling comic books be a crime? Well, this particular provision of the Criminal Code was added prior to World War I when Queen Victoria sat on the throne, consumption of alcohol was largely condemned, when women were not "people" under the law in Canada... and at a time when any glorification of crime was seen to be offensive to "decent people". As a result, any comic books that depicted crime were thought to be inherently evil, and something that the public needed to be protected from. Hence section 163(1)(b).

While this section of the criminal code made seem non-sensical in 2018, if one stops and considers the reason why laws are the way they are from a historical perspective, often times "odd" laws make perfect sense.

Final Thoughts

Great. So now you know some interesting stuff that happened a long time ago. So what, right? Well, on some level you're correct - none of this matters if you are facing a divorce, or the loss of your children: you don't care how the sausage is made, you just want the end product. I understand that. However, by recognizing the system that one is working in, and understanding how it works just a little bit better, the rest of the process becomes easier to understand.

Law is a behemoth topic. There is world of information out there. However, by starting with an understanding of where the Canadian legal system developed, and how it fits into the wider world, it becomes easier to understand why certain things operate the way they do in the Canadian legal system.

My intent for my next post is to write a post called "Divorce 101: What You Need to Know". However, give me some feed back. If there is another topic that you would like me to write about, please leave a comment below.